Judicial Recount handbook

4. Process for Determining Disputed Ballots

4.1 Steps Where There Are Disputed Ballots During the Recount of a Ballot Box

If, after any representations from a candidate's representative who is not a member of a recount team or the candidate's legal counsel, there is still no unanimous agreement on the classification of a ballot, the ballot shall be treated as a disputed ballot, in which case: [13(g) of Schedule 4]

The handler shall take the ballot from the counting pile, print on the back of the ballot (with the pen or pencil supplied to the recount team in small but legible script) a number in the form XX-Y, where XX is the ballot box number and Y is a unique sequential number starting at 1 for each disputed ballot within that box.

The recorder shall make an entry for the disputed ballot in the register of disputed ballots in the Recount Ballot Box Report, indicating its number and the envelope from which it originated.

The disputed ballots envelope shall then be returned to the ballot box. [18(b) of Schedule 4] The disputed ballots are counted after the counting of the other envelopes in the ballot box has been completed.

When all envelopes from the ballot box, except those designated as containing spoiled ballots and unused ballots, have been recounted, the handler shall:

Count the disputed ballots.

Place them in the disputed ballots envelope.

Indicate the number of the corresponding ballot box on the envelope. [14(1)(a) of Schedule 4]

The recorder shall:

Note the number of disputed ballots on the Recount Ballot Box Report.

Confirm the accuracy of the report with the recount team.

Invite the candidates' representatives to initial the report.

Attach the report to the disputed ballots envelope, together with the corresponding original Statement of the Vote. [14(1)(b) of Schedule 4]

The handler shall not seal the envelope containing rejected ballots, if any, or the envelopes for each candidate, and shall place the envelopes, including the unsealed disputed ballots envelope, in the ballot box along with the Recount Ballot Box Report, the corresponding original Statement of the Vote and the large envelope (poll bag). [14(1)(c) of Schedule 4]

When these steps are completed, the handler shall signal by raised hand that the recount team has completed its work with that ballot box. [14(3) of Schedule 4]

On receipt of the recounted ballot box, the returning officer shall ascertain whether it contains a disputed ballots envelope. [16 of Schedule 4]

This section describes the next part of the process for dealing with disputed ballots.

The first step that the judge is required to follow is to have photocopies made of the front and back of each disputed ballot – one for each party (candidate, candidate's representative and candidate's legal counsel) and one for the judge. Then the disputed ballots shall be returned to the disputed ballots envelope. [18(a) of Schedule 4].

The judge shall then set a time for the determination of the classification of the disputed ballots. The judge may wish to make a determination on disputed ballots for each ballot box instead of waiting until the end of the recount. If the judge decides to determine the classification of disputed ballots for each ballot box after the recount of that ballot box has been completed, it may be practical to have the photocopies made before the handler of the recount team signals for the return of the ballot box to the returning officer.Footnote 11 The prompt determination of disputed ballots for a completed ballot box while the recount of other ballot boxes continues may yield useful guidance to all of the participants in the recount. [18(c) of Schedule 4]

Before the judge makes a determination with respect to a disputed ballot, each party may make submissions. Unless the judge decides otherwise, for the purpose of making submissions, any party opposing the original classification of the ballot will be considered an applicant, and all other parties will be considered respondents. [18(c) of Schedule 4]

The judge may alter any of the procedures during the recount after giving the candidates, their representatives and legal counsel and the returning officer the opportunity to make submissions. [23 of Schedule 4]

4.3 Determination of the Judge on a Disputed Ballot

The judge shall, in the Recount Ballot Box Report:

Indicate in writing the determination with respect to each disputed ballot.

Complete his or her disposition portion of the report.

Initial on it the number of votes allocated to each candidate. [18(d) of Schedule 4]

The judge must cause each ballot for which a determination has been made to be placed into the appropriate envelope corresponding to the determination and shall cause the envelopes to be sealed and placed in the large envelope (poll bag) and the large envelope to be sealed and placed in the ballot box. [18(e) of Schedule 4]

The Recount Ballot Box Report, with the judge's disposition noted on it, and the original Statement of the Vote shall be given to the person responsible for the preparation of the Master Recount Report. [18(g) of Schedule 4] A copy of this report is included in Appendix E (Form 4) of this handbook.

4.4 Location of Ballot Box After Dispute Resolved

The judge must cause the ballot box and its contents to be sealed and placed in a secure location designated for ballot boxes for which the recount has been completed. [18(f) of Schedule 4] (The ballot boxes for which there were no disputed ballots are also placed in the secure location; see Section 3.3.3.1 above.)

Return to source of Footnote 11 Item 16 of Schedule 4 of the Act contemplates that the returning officer, after receiving delivery of the recounted ballot box, will determine whether it contains a disputed ballots envelope before the judge directs photocopies of the disputed ballots to be made and sets a time to determine their classification. However, section 23 of Schedule 4 of the Act empowers the judge to alter the Schedule 4 procedures after giving the parties and the returning officer the opportunity to make submissions.